Is Penn State’s new health assessment legal?

The following is a guest post by Nicholas Bagley, University of Michigan Assistant Professor of Law.

On Monday, Austin and Aaron cataloged the reasons for thinking that wellness programs won’t live up to the hype. Their poster child was Penn State’s aggressive new wellness program, Take Care of Your Health. As the New York Times reported this weekend, however, the program has sparked controversy not just because it probably won’t work. It’s also come under attack for intruding on employee privacy.

Penn State’s program allows employees to avoid a $100 monthly surcharge for their health insurance only if they fill out an extensive questionnaire about their health.  Some of the questions—and you apparently can’t skip any—ask “whether employees have recently had problems with a supervisor, a separation or a divorce, their finances or a fear of job loss; another question asks female employees whether they plan to become pregnant over the next year.”

The survey is meant to push employees to assess their personal health risks and what they might do to improve their health. As such, Penn State says, the survey responses “will not be used to remove or reduce health care benefits to you or your family, nor raise your health insurance premium.” Nonetheless, lots of people are understandably reluctant to share sensitive information with Penn State (or, more precisely, with the private health plan administrator that’s acting as its agent). That reluctance found expression at a recent faculty meeting—the video is available here—where professors raised particular concerns about the intrusiveness of the pregnancy-related question. Since then, some have claimed that Penn State has broken federal privacy and anti-discrimination laws by asking women about their pregnancy plans.

Is that right? I don’t think so. The Supreme Court has never recognized a constitutional right to informational privacy and is unlikely to do so anytime soon. And the most significant federal laws governing privacy—the regulations that HHS has issued under HIPAA—just prohibit health plans and providers from disclosing individually identifiable health information. To my knowledge, nothing in those regulations prohibits the solicitation of private information from individuals.

As for the antidiscrimination claim, keep in mind that the whole point of employer-sponsored wellness programs is to discriminate among employees. Smokers are treated worse than non-smokers, for example, to encourage employees to kick the habit. That kind of discrimination doesn’t usually raise any concerns under federal antidiscrimination law. So long as employers don’t treat people differently on the basis of race, religion, national origin, age, gender, or disability, they can typically discriminate among employees as much as they want.

They can’t, however, discriminate on the basis of pregnancy. The Pregnancy Discrimination Act was enacted in 1978 to clarify that Title VII’s prohibition on sex discrimination in the workplace also extends to pregnancy-related discrimination. So if Penn State slapped a $100 surcharge on women who intended to become pregnant within the year, that would violate Title VII.

But that’s not what’s happening here. Instead, Penn State is asking about pregnancy. As the Equal Employment Opportunity Commission has explained, “[f]ederal law does not prohibit employers from asking you whether you are or intend to become pregnant.” If that’s right—and I think it probably is—then an employee who is docked $100 per month because she refuses to answer the question hasn’t been discriminated against on account of pregnancy. She’s been discriminated against because she didn’t complete the health survey. Neither Title VII nor the Equal Protection Clause speaks to that.

Now, one lingering question is whether the survey is gendered. Does it ask everyone, men and women alike, about whether they intend to have a child in the next year? Or is the question directed only at women? The reports I’ve read have been a bit vague about this. But if men aren’t asked about their family plans, it’s possible that docking a woman $100 per month for refusing to answer a question that men are never asked would count as sex discrimination.

Even that’s not altogether clear, however. Consider a wellness program that asked women, but not men, about whether they’ve recently had a pap smear. Or one that asked men, but not women, about examinations for prostate cancer. Would it really violate Title VII to impose a surcharge on employees who failed to answer one of those questions? Although I’m not as familiar with the case law here as I’d like, it’s plausible to think that Title VII would allow employers to tailor questions in a medical survey to the physical differences between men and women. The ability to bear a child might be one of those differences.

In short, I haven’t seen anything yet (emphasis on “yet”) that persuades me that Penn State has broken the law. But let me be very clear: just because something’s legal doesn’t make it right. The backlash against Penn State exposes the uncomfortable fact that wellness programs invite private employers to tinker with the health habits of their employees. Not everyone will appreciate this sort of corporate paternalism, just like not everyone appreciates the sort of government paternalism that animates lots of public-health measures. Add that to the growing list of reasons that companies should think twice before jumping on the wellness bandwagon.

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